1. Under the Act of 1956 (Ga. L. 1956, p. 737) where a defendant pleads guilty to a capital offense, the trial judge is authorized in the exercise of his discretion, but is not required, to impose life imprisonment or a lesser punishment.
2. We adhere to the ruling in Sims v. Balkcom, 220 Ga. 7 (136 SE2d 766)
, that the statute requiring a death sentence for rape where the jury does not recommend mercy does not violate the constitutional prohibition against cruel and unusual punishments.
3. The general grounds of the motion for new trial are without merit.
4. Where the defendant invokes the rule of sequestration of the State's witnesses under the provisions of Code 38-1703, the trial judge is not authorized to allow the victim to remain in the courtroom, hear the other witnesses testify, and then also testify, unless the victim comes within one of the three exceptions to the sequestration rule. Here the record does not show any valid reason why the victim should have been allowed to remain in the courtroom.
5. The sheriff and deputy sheriffs properly remained in the courtroom after the invocation of the sequestration rule since they were needed so as to not diminish the efficiency of the court.
De Wayne Massey was convicted of the crime of rape in Turner Superior Court and excepted. The evidence adduced upon the trial of the case was as follows.
Dr. James W. Reynolds testified that he saw the victim, Mrs. Rhoda Alberson, as a patient at about 10:30 to 11 o'clock on the morning of October 14, 1964; that she arrived in the company of Deputy Sheriff Jimmy Brown; that she was in early shock, quite emotionally upset, and obviously injured; that her general condition was all right as far as her vital signs were concerned; that an examination revealed a large area of swelling above her forehead, lacerations about the face, and a broken nose which was bleeding; that on account of her history of alleged rape, a special examination was made to find sperm, but none were found.
Ida Maddie testified that she lived within "hollarin' distance" of Mrs. Rhoda Alberson; that on the morning of October 14, 1964, she and her two daughters were in their home; that the front door wasn't closed but the screen was; that she saw the defendant standing in her house that morning; that he said he wanted to use the telephone and she replied that she didn't have a telephone and he then looked around and went running off toward Mrs. Alberson's house; that he fell when he got to Mrs. Alberson's front door; that he got up and went on in and she heard Mrs. Alberson hollering and screaming; that she then rode off with her daughter approximately two miles to Mrs. Myers' house and reported the incident to her, and then drove approximately one-half mile further to Mr. Hoss Myers' house and told him to go over and see about Mrs Alberson; on cross examination she stated that on her return she saw a brown and white automobile stuck in the ditch on the north side of the Alberson house; that defendant's appearance that morning "looked funny" to her; that she had never seen him before.
Mrs. A. L. Myers testified that she lived about five miles from Sycamore; that at about 11 o'clock on the morning of October 14th Ida Maddie drove to her house in a truck and had a conversation with her, and that as a result of that conversation she called the Turner County Sheriff's telephone number and recounted to the person who answered, the report that she had just received from Ida Maddie.
Deputy Sheriff Jimmy Brown testified that at sometime between 11 and 12 o'clock on October 14, 1964, he received a telephone call and received a report that a white man had broken into a negro house; that he and Deputy Sheriff Deral Dukes, at the direction of the Turner County Sheriff went to the Alberson house where he found several cars assembled; found the front door ajar, went in and found the defendant, Mrs. Rhoda Alberson and her baby all in bed, with the defendant on top of Mrs. Alberson, that defendant had his penis inserted in her vagina and was pumping up and down; that he recognized the defendant immediately and hollered at him whereupon he jumped up and fell back to the top of the bed; that the defendant's face, Mrs. Alberson's face and the baby's face were all bloody; that the defendant was clothed only in his shorts and socks, that he made no reply and offered no resistance, and Deputy Sheriff Deral Dukes put the handcuffs on him; that Mrs. Alberson rolled off the bed and said she was sick, and began to throw up some; that she was clothed only in a housecoat; that he then carried her to the emergency room of the Doctors' Clinic in Auburn, Georgia, leaving the baby in the care of Mr. Hoss Myers and the defendant in the custody of Deputy Sheriff Deral Dukes; that he later returned and picked up the defendant and the deputy sheriff.
Deputy Sheriff Deral Dukes testified on direct examination that he went with Deputy Sheriff Jimmy Brown to the Alberson home on the morning of October 14, 1964; that when they were within ten or twelve feed of the door steps, they heard a woman moaning and hollering; that they broke and ran on into the house, the front door screen being ajar; that Deputy Sheriff Brown hollered at the defendant who then rolled back and fell back against the headboard of the bed; that he put handcuffs on the defendant and kept him in custody until Deputy Brown returned for them some 30 or 40 minutes later; that the defendant was dressed only in his shorts and socks; that his other clothing was scattered around in the back bedroom; that a butcher knife was found in one of his shoes; that he brought the clothing and the knife on in with the defendant; he identified the butcher knife which was put in evidence.
On cross examination he testified that the defendant's face was scratched and bloody, his hair was disarranged; that he had the appearance of a half drunk man; that he didn't look just right; that the defendant was examined by a doctor that day.
Osborn James Myers testified on direct examination that he talked to Ida Maddie and that after talking with her he got his cap and gun and drove over to Mrs. Alberson's house but was unable to hear or see anything after blowing the horn three times and listening; that he got back in his car and started to back out when he saw a two-tone tan and white 1956 Ford in the ditch down the hill from the Alberson house; that he went down and recorded the tag number, and that while he was there several other people arrived in cars and finally, approximately ten minutes from the time of his first arrival, Deputy Sheriff Jimmy Brown came to the house.
Dr. Larry B. Howard; Assistant Director of the Crime Laboratory of the State, testified that he arrived at the Alberson residence after dark on October 14, 1964; that he collected blood samples from various parts of the house and various objects in the house, that of the samples he was able to positively identify they all appeared to be human blood of type "O"; he further identified various photographs and a t-shirt recovered from the middle bedroom.
On cross examination he stated that he did not try to lift any fingerprints from the knife; that he was not a fingerprint man, that he doesn't recall having seen the knife, but may have. On redirect examination Dr. Howard identified the quilt taken from the bed in the front bedroom and testified that the blood stains were of human blood, type "O."
Dr. Woodrow Goss testified that he was a medical doctor; that he was called to the jail on October 14, 1964, at about noon time, to examine the defendant who was complaining of a headache; that he did not conduct a thorough physical and medical examination, he just checked him for his headache; that he did not note any odor of alcohol or stimulants about the defendant. On cross examination, he testified that no one had alerted him to look for any signs of dope; that he did not examine the defendant to any extent to determine whether or not he was under the influence of dope; that he was fully rational at the time he saw him; that he was not under dope or whiskey to any extent; that he didn't know what he was doing or what the doctor was doing.
Sheriff C. S. Hunt testified that on October 14, 1964, while Turner Superior Court was in session he received a report, and that in response to said report he sent Deputies Jimmy Brown and Deral Dukes to investigate; that he learned from his wife that Deputy Jimmy Brown had taken Mrs. Alberson to the Doctors' Clinic and that he then went down to the Doctors' Clinic to check with Mrs. Alberson and Dr. Reynolds; that when he arrived Mrs. Alberson was in such shock that she could not talk; that she had a gash above her left eye and down into the nose, and her face was swollen, that the caps to her teeth were knocked off; that he returned to the jail and saw that Dukes had brought in the defendant; that he had on only his shorts and a pair of socks; that his face was scratched up some; that there was some blood on his nose; that he (the sheriff) went out and took some pictures with one Charles Perry and later with Dr. Howard.
The victim, Mrs. Rhoda Alberson, testified that on the morning of October 14, 1964, the defendant, De Wayne Massey, entered her home, asked if he could "borrow" her telephone and then, without warning, brutally attacked and raped her, despite all her resistance; that she was finally rescued by the two deputies, Brown and Dukes, and carried to the clinic; that she was so weak she could not get up by herself and vomited blood several times on the way to the doctor; that the doctor took five stitches in three places on her face.
The defendant, DeWayne Massey, in an unsworn statement related to the court and jury that back on June 12, 1962, he was sentenced to twelve months for assault and attempt to murder and was sent to the McRae State Prison Camp; that while there he learned about dope, narcotics, and started shooting dope; that he got transferred to Jesup four months later and was still shooting dope; that in January of 1964 he was transferred to Reidsville, Ga., and just started shooting more of it; that he got out on September 25th and was going to leave it alone but that on Saturday night before the Wednesday when the crime took place, he went out of town and bought a hypodermic needle, a five c.c. syringe, four quarter grains of morphine and two meteridine capsules; that on Wednesday morning when the crime happened, at about a quarter till eight when he saw he wasn't going to work on account of the rain, he got the syringe and needle and fixed up a quarter grain of morphine and took it in his blood vein; that a shot of a quarter grain of morphine is supposed to last four hours before it wears off; that he had never taken two shots within four hours before, but that on this morning, within 30 or 45 minutes, he shot another quarter grain and it gave him a chill and put him out of his head for a few minutes, and that after that he just remembers when it comes and goes; that he went to the filling station and got his brother's car; that he didn't know where the crime happened except what he heard in the courtroom; that he was very sorry that the people were hurt and that if he had not been shooting dope it wouldn't have happened; that if the court, or the sheriff, or some of them would have carried him to his house he could have brought proof that he was shooting dope because he had two more quarter grains of morphine, a meteridine capsule, and the syringe and needle, but that they would not take him; that that was the only reason it happened and he was very sorry but he couldn't help it; that if he had been in his right mind, he wouldn't have done it.
Sheriff C. S. Hunt, recalled on redirect examination in rebuttal, testified that be had a conversation with the defendant concerning whether or not he was using dope on October 14, 1964; that they were having trouble in the jail and that he had a conversation with George, the janitor, and as a result of this conversation he and Lieutenant Smith went up into the jail and found that the defendant was trying to dig out of jail around the commode; that this had occurred about a week before the trial; that at the time of the conversation in question the defendant voluntarily said that if he, the sheriff, were in there he would try to get out too, and that he didn't know anything about what happened out yonder.
Dr. Larry Howard, recalled in rebuttal, testified that he was familiar with dope addiction and trained in that field; that a sex drive was like a hunger drive and that morphine acted on the brain to relieve an individual from pain and other unpleasant sensations that need relief; that in a hypothetical situation, if a person had a strong sex drive and took morphine, it would tend to relieve the sex drive without the need for actual sexual satisfaction.
On recross examination Dr. Howard testified that he was not saying that a person who had taken a quarter grain of morphine would have no sex desire whatever under any circumstances, but that the effect of morphine would be to decrease or lessen to some extent the sex desire; that he could not say definitely whether or not it would make it more difficult for a person to reach what we call the sex climax, that generally an individual would feel less need to indulge in sexual activity. On redirect examination, he testified that if a quarter grain of morphine were taken around 9:30 or 10 o'clock in the morning and this was followed by another thirty or forty minutes later, this would decrease the individual's need for sexual gratification.
George Buckler testified that he was a trusty at the Turner County jail; that he knew the defendant and had seen and talked to him while he was staying in the Turner County jail awaiting trial for the rape of Mrs. Alberson; that he talked to the defendant on Thursday before the trial and that the defendant told the witness that he dialed the phone number and couldn't get an answer, and Mrs. Alberson was standing in the door, and that he laid the receiver down and turned around and that her housecoat flew open and that was what got him upset.
The bill of exceptions contains exceptions to the sentence entered in the case and to the judgment overruling the defendant's amended motion for new trial.
1. The first assignment of error contained in the bill of exceptions is to the refusal of the trial judge to accept the defendant's plea of guilty and sentence him to life imprisonment, under the provisions of Ga. L. 1956, p. 737 (Code Ann. 27-2528), on the grounds that: "under a proper construction of said statute, it was mandatory upon the court to accept said plea of guilty and to sentence the defendant accordingly, the discretion vested in the court by said Act relating not as to whether said plea of guilty shall be accepted and sentence imposed, but rather as to whether sentence shall be imposed in term time or vacation; as to whether the sentence shall be for life imprisonment, or to any lesser punishment authorized by law for the offense named in the indictment."
The statute could not be couched in plainer or more explicit terms. It can not be, as insisted in the splendid brief of counsel for the plaintiff in error, construed to mean that, upon the defendant in a capital felony case entering a plea of guilty, the trial judge must sentence him to life imprisonment or a lesser punishment. He is merely authorized, in the exercise of his discretion, but is not required by the provision of the Act of 1956, supra, to impose such sentence.
The insistence that "may" in the connotation in which the word is employed in the above mentioned Code section should be construed to mean "must" is contrary to the interpretation this court has given the same word as used in a similar statute permitting the trial judge to impose a life sentence in the event a defendant is convicted of a capital offense solely on circumstantial evidence. Code 26-1005, as amended (Ga. L. 1963, p. 122), originally section 783 of Cobb's Digest, contains the provision: "if the jury trying the case shall so recommend, or if the conviction is founded solely on circumstantial testimony, the presiding judge may sentence to confinement in the penitentiary for life." This court as early as 1873 in Kelly v. State, 49 Ga. 12, 18, held this clause authorized, but did not require, the trial judge to sentence the defendant to life imprisonment
The exception does not show error.
2. The second assignment of error is to the judgment of the trial court imposing the death sentence upon the defendant on the ground that it was contrary to law because the "order and judgment, together with the statute upon which it was based, which statute, Georgia Code 26-1302, makes the death sentence mandatory upon rendition of a guilty verdict without a recommendation of mercy, violates Article 1, section 1, paragraph 9, of the Constitution of this State, and of the Eighth Amendment to the Constitution of the United States, which declare that 'Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted,' particularly, where as here, the victim survives the attack, thereby making the punishment cruel, unusual and excessive, and all out of proportion to the offense committed."
This court, after careful consideration, ruled in the full bench case of Sims v. Balkcom, 220 Ga. 7 (136 SE2d 766)
, that the statute did not prescribe cruel and unusual punishment for the heinous crime of rape. In cogent argument, counsel urge that the Sims case be overruled. However, we are firm in our opinion that the pronouncement of that case is a sound statement of law. Hence, we deny the motion and hold the ground is without merit.
3. The general grounds of the motion for new trial are not insisted upon and are clearly without merit.
4. Special ground 1 of the amended motion for new trial complains that, over the timely objection of counsel, the court admitted the testimony of the county sheriff that the defendant, in an apparent effort to escape, had dug around the commode in his cell. The admission of the evidence is assigned as error because the defendant had "tacitly" admitted his guilt of the crime charged in the indictment; hence, since evidence of an attempt to escape is only evidence tending to show guilt, it was irrelevant to an issue then in the case and was prejudicial.
Evidence that a defendant, after incarceration, attempts to escape is ordinarily admissible. Whaley v. State, 11 Ga. 123, 126 (3); Kettles v. State, 145 Ga. 6 (3) (88 SE 197). We can not agree the evidence was inadmissible in the present case because the defendant by orally admitting his guilt eliminated the issue of his guilt from the case. The issue as to the defendant's guilt was made by the indictment charging him with rape and his plea of not guilty. So long as the plea remained, the State had the right to submit all available and competent proof of his guilt.
It must also be observed that evidence of the defendant's admission to the sheriff that he was attempting to escape was admitted without objection. Whether or not certain testimony was admissible, its admission was not error where substantially the same evidence was introduced without objection. Butts County v. Hixon, 135 Ga. 26
, 27 (2) (68 SE 786
); Whippler v. State, 218 Ga. 198
, 204 (126 SE2d 744
); Cooley v. Bergstrom, 3 Ga. App. 496 (2) (60 SE 220)
The ground shows no error.
5. The second special ground of the motion for new trial complains that the trial judge erred in permitting the victim of the rape to testify as a witness in the case over the timely objection of the defendant's counsel. The objection interposed when the victim was offered as a witness was that she was incompetent to testify because at the beginning of the trial the defendant had invoked the rule of sequestration of witnesses provided by Code 38-1703, and the proposed witness had remained in the courtroom. The judge in overruling the objection stated: "It is always the policy of the court, where the witness is the alleged victim of any crime, in the exercise of the court's discretion, to allow said witness to remain in the courtroom. I think it is a matter entirely within the discretion of the court. . . . [T]he general rule is that all witnesses leave the courtroom, unless they are such witnesses as, in most instances, are either the prosecutor or the alleged victim of the crime. I think, due to the crime involved and in the exercise of that discretion, I have allowed the witness to remain in the courtroom."
The error complained of is not that the witness, having violated the judge's order of sequestration granted in conformity with the statute by remaining in the courtroom, was permitted to testify, but the assignment of error is that the trial judge denied the defendant the absolute right as provided by Code 38-1703 to have the witnesses for the State examined out of the hearing of each other, in that the victim despite the defendant's invocation of the rule at the beginning of the trial, although not the prosecutrix in the case, was permitted by the trial judge to remain in the courtroom throughout the trial and, after hearing the testimony of other witnesses, to give her testimony.
The ground alleges the victim, Mrs. Alberson, was not the prosecutrix and that the State's counsel did not state, nor did the record show, that it was necessary that the witness remain in the courtroom to assist counsel or that she was, for any other reason, exempt from the operation of the sequestration statute. The record is silent as to whether she assisted counsel in the presentation of the case. In prosecutions for rape it may appear from statements of the State's counsel that the victim is needed to give aid in the prosecution or for some other legitimate reason her presence in the courtroom is necessary in the efficient prosecution of the case. However, in the absence of any such showing or statement of the solicitor general and where the record is silent as to any reason she should be excepted from the rule and allowed to remain in the courtroom, none will be assumed to exist.
The ground stated there was no reason given by the solicitor and none appeals from the record as to why the witness could not have been called to testify before hearing the testimony of other witnesses.
The right under our sequestration statute to have the witnesses of the opposite party examined out of the hearing of each other has always been an absolute right granted by Code 38-1703. However, for years many of the trial courts administered the sequestration statute without uniformity and in a somewhat lax fashion. Frequently when the rule was invoked the trial judge allowed a witness or witnesses to remain in the court for any reason that appeared sufficient to him, without regard to the reasons he had a right to exercise a discretion to permit an exception to the rule that the witnesses of each party be sequestered and examined out of the hearing of each other. The consequence was that in many instances the litigant who invoked the rule had the absolute right granted him by the sequestration statute curtailed, diminished or denied him altogether.
This was, to a large extent, the fault of the appellate courts which laid down no definite guide lines to be followed in the application of the sequestration rule. However, this court through the splendid opinion of Chief Justice Duckworth in the full bench case of Poultryland Inc. v. Anderson, 200 Ga. . 549, 562 (37 SE2d 785), did clearly and specifically delineate the precise instances in which the trial judge has discretion to allow a witness or witnesses to remain in the courtroom, despite the invocation of the sequestration rule. We quote from the opinion: "the rule as fixed by the Code of 1863 ( 3787) and continued in all subsequent Codes, as to the sequestration of witnesses, conferred upon the party making such request an absolute right, subject only to the sound discretion of the trial judge in permitting one or more witnesses to remain in the courtroom to advise the opposite party in the presentation of his case, and where it appears that in making the exception to the rule the fair rights of the opposite party are secured or the impairment of the efficiency of the court avoided by allowing a deputy or other officials, who are witnesses, to remain in the courtroom."
Montos v. State, 212 Ga. 764 (95 SE2d 792)
, and McGruder v. State, 213 Ga. 259 (98 SE2d 564)
, both full bench cases, followed the Poultryland case, supra, and held that in order for any witness to be excepted from the rule of sequestration the State must show he comes within one of the three categories defined in the Poultryland case.
Montos v. State, 212 Ga. 764
, 765, supra, makes clear the rule that in criminal cases the burden of making such a showing is upon the State. In that case, two officers, agents of the Georgia Bureau of Investigation, were, despite the invocation of the sequestration rule, allowed to remain in the courtroom and, after hearing the testimony of other State's witnesses, testified. The case states: "He [the solicitor general] made no contention that he needed their assistance in the conduct of the case, nor was any reason given other than that they were officers. The witnesses were employees of the Georgia Bureau of Investigation. There is nothing in the record to support the contention of the solicitor general that these officers were needed in the courtroom to guard against an escape by the defendant, who he claims was an 'escape artist.' " The exception of the witnesses from the operation of the sequestration rule was, in these circumstances, held to be error. The opinion continued with the pronouncement: "The record in this case does not bring it within any of the exceptions to the rule. We can not agree with the State that the record does not show any harm to have resulted to the defendant because of this error. Whenever a party is deprived of his rights, the presumption of the law is that he has been injured unless the contrary plainly appears . . . Furthermore, the death penalty was imposed in this case, and it can not be said that the jury's verdict was demanded, and that this error might have been harmless. Barfield v. State, 179 Ga. 293 (1) (175 SE 582)
In the McGruder case, 213 Ga. 259
, 267 (9), supra, it is stated: "In ground 12 it is contended that the court erred in permitting, over timely objections, G. W. Goss, a witness for the State, to remain in the courtroom during the examination of other witnesses, after the rule had been invoked and the witnesses had been ordered sequestered by the court, and subsequently allowing him to testify as a witness for the State. It is stated that G. W. Goss was not the prosecutor in the case . . ." This is followed by the observation: "No reason appears from the record why this witness could not have been called first by the State, and after his testimony, be retained in the courtroom for the purpose of aiding the solicitor general, if needed."
In the present case no reason appears why the witness could not have been sworn and testified before she was permitted to hear the other testimony of the State's witnesses. The victim of the rape is not the prosecutrix of the case, but if she could be considered as occupying that status, she would not have been entitled to remain in the courtroom and hear all the testimony of the other State's witnesses before she testified. In Tift v. Jones, 52 Ga. 538 (4), this court held: "When a party to an action intends to be a witness for himself, and the court directs that his witnesses be separately examined, it is the proper rule, unless there be special reasons to the contrary, that such party should first be examined in the absence of his other witnesses, in order that he may thereby be present, as is his right, during the whole trial of his case." The motion for new trial recites there was no reason stated by the solicitor and none appears from the record as to why the witness could not have been called to testify before hearing the testimony of other witnesses. This rule is recognized and followed in the McGruder case, supra.
There is nothing in the present record to show any exception to the rule which gives the right to parties to have the witnesses sequestered, and this ground shows error which demands that a new trial be granted.
6. Special ground 3 of the motion for new trial except to the order entered by the trial judge overruling a motion for mistrial. The motion was made upon the ground that the trial court daring the progress of the trial denied the defendant's absolute right to have the witnesses for the State examined out of the hearing of each other, the sequestration rule under Code 38-1703 having been duly invoked. The specific complaint was that the victim of the rape, the sheriff and two of his deputies had been allowed to remain in the courtroom and, after hearing the other witnesses testify on behalf of the State, give their testimony.
The trial judge ruled: "The court has considerable discretion with reference to the rule pertaining to sequestration of the witnesses, and the person who is alleged to be the victim was allowed to remain in the courtroom, as is customary in like cases, where a person, although not the prosecutor, in the sense that they did not swear out the warrant, but are alleged to be the victim; in cases of this nature, it is customary to allow them to remain in the courtroom and in the discretion of the court this witness, Mrs. Rhoda Alberson, was allowed to remain in the courtroom. With reference to the three officers mentioned, the court recognizes a little more than the usual security angle in the handling of this case, and it was necessary that officers be present at all times, and not only were the sheriff and the two deputy sheriffs allowed to stay in the courtroom, they were authorized to do so, and it was their duty to remain in the courtroom, as officers of this court."
We are of the opinion that he was correct in his ruling that the sheriff and deputy sheriffs be permitted to remain in the courtroom as to remove them would obviously diminish the efficiency of the court. However, for the reasons stated in the preceding division we hold he erred in permitting the victim, Mrs. Alberson, to remain in the courtroom despite the invocation of the sequestration rule.
Judgment reversed. All the Justices concur.